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In 18 U.S.C. 1346, Congress as part of the Anti-Drug Abuse Act of 1988 provided that a "'scheme or artifice to defraud' includes a scheme or artifice to deprive another of the intangible right of honest services." Unfortunately, a definition of honest service was not provided. Many courts have struggled with how far to allow prosecutors to go in permitting a mail fraud prosecution premised on this phrase. Jack Arseneault has an interesting piece in the New Jersey Law Journal (here - Download arseneault_6.26.06.pdf - reprinted with permission) on "honest services." He discusses the Panorella and Murphy decisions. Most of all he describes the vagueness of this statute. See another recent case with this issue here.

The vagueness of 1346 was emphasized in a dissenting opinion by Judge Jacobs, joined by Judges Walker, Cabranes, and Parker, in the en banc case of United States v. Rybicki where they highlighted the different interpretations of this statute provided by different courts. (see here at USA V RYBICKI, 00-1043 (L), 00-1044, 00-1052, 00-1055 (December 29, 2003).